Josephine Havlak Photographer v. Village of Twin Oaks

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3377
___________________________
Josephine Havlak Photographer, Inc.; Josephine Havlak
lllllllllllllllllllll Plaintiffs - Appellants
William Joseph Hill; Mary Katherine Hill
lllllllllllllllllllll Plaintiffs
v.
Village of Twin Oaks; Kathy Runge, Village of Twin Oaks Clerk/Controller in her
official capacity only
lllllllllllllllllllll Defendants - Appellees
John Belmar, St. Louis County Police Chief in his official capacity only
lllllllllllllllllllll Defendant
------------------------------
International Municipal Lawyers Association; Minneapolis Park and Recreation Board
lllllllllllllllllllllAmici on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: April 5, 2017
Filed: July 26, 2017
____________
Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
____________
SMITH, Chief Judge.
The Village of Twin Oaks (“The Village”) passed a municipal ordinance
prohibiting all commercial activity in its neighborhood park without a permit. A
commercial photographer, Josephine Havlak, sued the Village for injunctive and
declaratory relief on behalf of herself and her business, Josephine Havlak
Photographer, Inc. Havlak alleged that the ordinance violates her Free Speech rights
guaranteed by the First Amendment of the United States Constitution. The district
court1 denied her claims, and we affirm.
I. Background
The Village is a community of approximately 400 residents in Saint Louis
County, Missouri. It has a five-member Board of Trustees (“the Board”), which
administers the legislative and policymaking functions of the community. Too small
to operate its own police department, the Village contracts with Saint Louis County
(“County”) to provide police services. The County regularly assigns Officer Mike
Maxwell to the Village for 40 hours per week. Officer Maxwell responds to calls,
writes speeding tickets, and provides other municipal policing services. When it
needs additional police support, the Village contracts directly with Officer Maxwell
and other officers at an hourly rate.
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
-2-
In 1994, the Village dedicated an 11-acre public park in the middle of the
community; the park includes a walking trail, lake, waterfall, gazebo, bridge,
playground, and sporting amenities. To protect this new resource, the Board enacted
a comprehensive ordinance prohibiting, among other things, motorized vehicles,
hunting, all commercial activity, and the obstruction of walkways. In 2011, the
Village upgraded the park’s playground equipment, and the park experienced a
dramatic increase in visitors—including a large number of commercial
photographers. Because of the gazebo, waterfall, bridge, and other garden structures,
one photographer referred to the park as presenting “a lot of good photo opportunities
in a small area.”
Commercial photographers (as many as eight at a time) and their subjects
began competing for shooting locations within the park. Wedding parties would
congregate for photos on the park bridge. Photo subjects would occupy the park
restroom facilities, using them as dressing rooms. Some photographers would even
set up outdoor studios in the park for shooting multiple subjects in an assembly-line
fashion. In reaction to this increased traffic and in response to the Village residents’
complaints, the Board erected signs notifying photographers of the longstanding
ordinance prohibiting commercial activity within the park. Havlak filed this lawsuit
to enjoin enforcement of the ordinance and to declare the ordinance a violation of her
right of free speech.
Havlak is a professional photographer based in Saint Louis, Missouri. She
describes her work as conveying an expressive message in a manner similar to the
work of American portrait painter John Singer Sargent. Havlak maintains the
copyright to all her photographs and licenses them to her clients for personal use
only. Every year, she photographs hundreds of senior class portraits and more than
a dozen weddings. Her photo shoots usually last for less than an hour and feature only
a handful of people. Despite knowing about the park for more than ten years, she had
never used it for photography before filing this suit. Havlak testified that she had
-3-
taken photographs in the park on two occasions. Both times, she saw at least three
other photographers and their subjects in the park. During one of these shoots, Havlak
instructed her client to change clothes in a wooded area and to pose outside the
railing on the park bridge; it is undisputed that “a fall from the bridge could cause
serious injury.”
In response to this lawsuit, the Board amended its park ordinance to create a
permit process for the commercial use of park facilities (Ordinance § 220.020).2
2
The relevant portion of the ordinance follows, as codified at the time of the
injunction hearing:
Regulation of Solicitations and Commercial Activities.
1. Solicitation of any business or service is prohibited. No person,
firm, or corporation is permitted to offer or advertise merchandise
or other goods for sale or hire. Excepting Village-sponsored
events and activities, the maintaining of a concession or the use
of any park facility, building, trail, road, bridge, bench, table or
other park property for commercial purposes is prohibited unless
a permit is issued by the Board of Trustees or its designated
representative(s). Such permit shall be clearly displayed by the
person(s) seeking to conduct commercial activities within the
park. The permitting process will help to ensure that the Village
is aware of the activity taking place within the park, that the
proposed date/time/location does not conflict with scheduled
activities/events/operations, and that no harm is done to the
landscape of the park. In its review of the permit request, the
Board of Trustees or its designated representative(s) should
consider:
a. The risk of damage and injury as set forth in Section
220.020(B) through (E);
b. The disruption of or conflict with the public’s use and
-4-
enjoyment of the park;
c. Whether the issuance of such permit may result in crowded
or congested conditions due to the anticipated number of
attendees for a planned event.
d. The nature of the requested activity, including whether
such activity involves:
(1) The sale of products or items, which is prohibited
unless it is a First-Amendment-protected activity;
(2) The use of furniture, tents [as that term is defined in
Section 220.040(D)] or large “prop” amenities,
which is prohibited; or
(3) The use of models or equipment.
e. The time and duration requested for such commercial
purposes, including:
(1) Whether the activity will exceed one (1) hour;
(2) Whether the number of people involved exceeds ten
(10); or
(3) Whether the time requested conflicts with a period
of peak visitation to the park or other scheduled
events, activities, or operations.
2. Any permit request involving less than ten (10) people, lasting for
less than one (1) hour, and complying with the above, will be
granted by the Village Clerk/Controller or a designee. All permit
requests must be submitted at least forty-eight (48) hours before
the proposed activities. Any permit request involving ten (10) or
more people, lasting more than one (1) hour, or otherwise
-5-
The permit process requires the Board to consider the risk of damage to the park, any
disruptive effects on typical park use, the potential congestion caused by the activity,
and the nature of the activity itself. The ordinance allows for automatic approval of
events lasting less than one hour, having fewer than ten people, and with 48 hours’
advance notice. The permit fee is $100. As far as the record discloses, the Village has
approved all permit applications.3
Two Board members, Lisa Eisenhauer and Chairman Ray Slama, testified at
the injunction hearing regarding the legislative intent behind the permit process. In
Eisenhauer’s words,
We do enjoy the photographers coming to see the park and taking
pictures and using the park, but we had to balance the interest of the
other park users and that’s why we went to the permitting process so that
the photographer receives the exclusive use of certain areas in which
they wish to do their shoot so that they can perform their shoot
efficiently.
conflicting with any of the above factors must be submitted at
least fourteen (14) days in advance of the proposed activities so
that the Board of Trustees may review the request, and the
permitted authority may be limited to certain designated areas.
Each permit issued by the Village shall only be effective on the
date and time specified on the permit. Specific permit fees shall
be set by the Board of Trustees from time to time and shall be
posted on the Village’s website.
Village of Twin Oaks, Mo., Rev. Ordinances ch. 220, § 220.020(P) (2016) (alteration
in original).
3
Havlak amended her complaint in response to the Village’s updated permit
process.
-6-
The permit fee pays for a police officer to manage the commercial event, ensure
exclusive use of certain park areas, protect against interference with other park users,
and ensure that park rules are followed. Chairman Slama testified: “We have found
that our commercial photographers generally have issues obeying those rules.” He
emphasized that the Board endeavored to draw the restrictions as narrowly as possible
with the express intention to “allow[] the commercial photographer[s] to come in and
take their shoot.” Both Board members testified to a direct correlation between the
permit fee and the administration of the permit, specifically noting the cost that the
Village incurs for the additional police support. Per Eisenhauer: “We ask for a permit
because if we don’t have a way to regulate not having five or six wedding groups
down there at the same time, then we have congestion in our park which we have
found to cause problems.” Havlak has never applied for a commercial permit.
The district court denied Havlak’s request for injunctive relief and entered a
declaratory judgment in favor of the Village.
II. Discussion
A. Facial vs. As-Applied Challenge
Havlak challenges the Village ordinance as overly broad both facially and as
applied to her. “Ordinarily, a party may not facially challenge a law on the ground
that it would be unconstitutional if applied to someone else.” SOB, Inc. v. Cty. of
Benton, 317 F.3d 856, 864 (8th Cir. 2003). The First Amendment overbreadth
doctrine, however, provides an avenue “whereby a law may be invalidated as
overbroad if ‘a substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S.
460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 449 n.6 (2008)). “[T]he facial overbreadth doctrine ‘is a departure from
traditional rules of standing,’ such that a party whose own expressive conduct may
be unprotected is allowed to assert the First Amendment rights of others not before
the court . . . .” Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 792 (8th Cir.
-7-
2004) (citation omitted) (quoting Alexander v. United States, 509 U.S. 544, 555
(1993)).
For a federal court to entertain a facial challenge pursuant to the First
Amendment overbreadth doctrine, “[t]here must be a realistic danger that the statute
itself will significantly compromise recognized First Amendment protections of
parties not before the [c]ourt.” Jacobsen v. Howard, 109 F.3d 1268, 1274 (8th Cir.
1997) (quoting Bd. of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569,
574 (1987)). “‘To be facially invalidated under this doctrine, the overbreadth of an
ordinance affecting both conduct and pure speech must be both “real” and
“substantial” in relation to its “plainly legitimate sweep.”’” Minn. Majority v.
Mansky, 708 F.3d 1051, 1056 (8th Cir. 2013) (quoting Excalibur Grp., Inc. v. City
of Minneapolis, 116 F.3d 1216, 1224 (8th Cir. 1997)). “‘Facial challenges are
disfavored’ because they ‘often rest on speculation . . . [and] raise the risk of
premature interpretation of statutes on the basis of factually barebones records.’”
Phelps–Roper v. City of Manchester, 697 F.3d 678, 685 (8th Cir. 2012) (alteration in
original) (internal quotation marks omitted) (quoting Wash. State Grange, 552 U.S.
at 450).
Havlak bears the burden to demonstrate that she has standing to bring a facial
overbreadth claim. See Klobuchar, 381 F.3d at 791. For such challenges, “the party
before the court must identify a significant difference between his claim that the
statute is [facially] invalid on overbreadth grounds, and his claim that it is
unconstitutional as applied to his particular activity.” Van Bergen v. Minn., 59 F.3d
1541, 1549 (8th Cir. 1995). “We generally do not apply the ‘strong medicine’ of
overbreadth analysis where the parties fail to describe the instances of arguable
overbreadth of the contested law.” Wash. State Grange, 552 U.S. at 449 n.6 (internal
quotation marks omitted) (quoting N.Y. State Club Ass’n v. City of N.Y., 487 U.S. 1,
14 (1988)). It is inappropriate to entertain a facial overbreadth challenge when the
plaintiff fails to adduce any evidence that third parties will be affected in any manner
-8-
differently from herself. See Members of City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 802 (1984); see also Ashcroft v. Am. Civil Liberties Union,
535 U.S. 564, 584–85 (2002) (dismissing a facial overbreadth challenge for failure
to meet burden relating to other parties); Snider v. City of Cape Girardeau, 752 F.3d
1149, 1157 (8th Cir. 2014) (“[T]he fact one can conceive of an impermissible
application of a statute is not sufficient to render it susceptible to an overbreadth
challenge.”). Havlak presents no allegedly unconstitutional scenarios affected by the
Village ordinance beyond her own commercial photography, so we will limit our
analysis to the ordinance’s application to Havlak.
B. Time, Place, and Manner Regulation
We review the district court’s denial of injunctive relief for an abuse of
discretion, and we will reverse only if the district court made “clearly erroneous
factual findings or erroneous legal conclusions.” Traditionalist Am. Knights of the Ku
Klux Klan v. City of Desloge, 775 F.3d 969, 974 (8th Cir. 2014) (quoting S.J.W. ex
rel. Wilson v. Lee’s Summit R–7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)). In
First Amendment cases, we review the constitutional claims de novo, see Johnson v.
Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1098 (8th Cir. 2013), and we
independently examine the record to ensure that there is no “forbidden intrusion on
the field of free expression,” Families Achieving Indep. & Respect v. Neb. Dep’t of
Soc. Servs., 111 F.3d 1408, 1411 (8th Cir. 1997) (en banc) (quoting N.Y. Times Co.
v. Sullivan, 376 U.S. 254, 285 (1964)).
As incorporated through the Fourteenth Amendment, see Survivors Network
of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 789 (8th Cir. 2015), the First
Amendment’s prohibition against “abridging the freedom of speech,” U.S. Const.
amend. I, applies to ordinances enacted by the Village. Nevertheless, the Village may
“regulate competing uses” of a traditional public forum, like a park, by “impos[ing]
a permit requirement.” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 130
(1992); see also Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (“A
-9-
basic rule . . . is that a street or a park is a quintessential forum for the exercise of
First Amendment rights.”). Although we apply a “heavy presumption” against the
validity of ordinances that create prior restraints on speech, we will uphold such
ordinances if they meet the constitutional standards for time, place, and manner
regulations. See Forsyth Cty., 505 U.S. at 130 (quoting Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 70 (1963)).
“[A]ny permit scheme controlling the time, place, and manner of speech must
not be based on the content of the message, must be narrowly tailored to serve a
significant governmental interest, and must leave open ample alternatives for
communication.” Id. Additionally, “[s]uch regulations . . . must not ‘delegate overly
broad licensing discretion to a government official,’ and contain narrow, objective,
and definite standards to guide licensing authorities.” Douglas v. Brownell, 88 F.3d
1511, 1521 (8th Cir. 1996) (quoting Forsyth Cty., 505 U.S. at 130). We will analyze
the ordinance by these elements.4
1. Content Neutrality
“Content-based laws—those that target speech based on its communicative
content—are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state
interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). “[C]ourts will
4
Like the district court, we assume without deciding that Havlak’s photography
constitutes expressive conduct entitled to First Amendment protections. See
Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, 195 F. Supp. 3d 1065,
1075 (E.D. Mo. 2016). Because Havlak’s constitutional claim fails under the “most
exacting test” of First Amendment expression, we need not decide whether her
photography qualifies as expressive conduct or analyze the ordinance under the rubric
of commercial speech. See Kaahumanu v. Hawaii, 682 F.3d 789, 800 (9th Cir. 2012);
see also Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011) (“[T]he outcome is the
same whether a special commercial speech inquiry or a stricter form of judicial
scrutiny is applied.”).
-10-
apply a strict scrutiny analysis when the regulation discriminates on the basis of
content, and a more lenient analysis to content-neutral regulations.” Bery v. City of
N.Y., 97 F.3d 689, 696 (2d Cir. 1996). “The principal inquiry in determining content
neutrality . . . is whether the government has adopted a regulation of speech because
of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989). “A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some speakers or
messages but not others.” Id.Havlak argues that two recent Supreme Court cases—Reed, 135 S. Ct. 2218,
and Sorrell, 564 U.S. 552—“have moved the goalposts for legislators seeking to
regulate speech based on the identity of the speaker and the type of message.” She
argues that the Village ordinance was intentionally created to burden the speech
rights of commercial photographers. See Reed, 135 S. Ct. at 2230 (“Because ‘[s]peech
restrictions based on the identity of the speaker are all too often simply a means to
control content,’ we have insisted that ‘laws favoring some speakers over others
demand strict scrutiny when the legislature’s speaker preference reflects a content
preference.’” (first quoting Citizens United v. FEC, 558 U.S. 310, 340 (2010); then
quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994))). This legislative
intent, she argues, requires us to apply strict scrutiny instead of the intermediate
scrutiny traditionally applied to content-neutral “time, place, and manner” restrictions
of a traditional public forum.
Because strict scrutiny applies either when a law is content based on its
face or when the purpose and justification for the law are content based,
a court must evaluate each question before it concludes that the law is
content neutral and thus subject to a lower level of scrutiny.
Id. at 2228. In this case, the Village ordinance is facially content neutral and no
evidence shows a content-based purpose or justification.
-11-
Ordinance § 220.020 is facially neutral, unlike the restrictions in both Reed and
Sorrell which directly burdened speech content. See, e.g., Reed, 135 S. Ct. at 2227(“The Town’s Sign Code is content based on its face.”); Sorrell, 564 U.S. at 564(“The law on its face burdens disfavored speech by disfavored speakers.”). The
Village’s ordinance does not reference any specific commercial enterprise or any
specific message. It applies equally, for example, to commercial photographers and
to hot dog vendors. The “commonsense meaning of the phrase ‘content based’
requires a court to consider whether a regulation of speech ‘on its face’ draws
distinctions based on the message a speaker conveys.” Reed, 135 S. Ct. at 2227(quoting Sorrell, 564 U.S. at 565–66). Lacking any reference to any specific message
or messenger, the ordinance facially avoids Havlak’s content-based characterization.
The record also shows the lack of a content-based purpose behind Ordinance
§ 220.020. “The principal inquiry in determining content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is whether the government
has adopted a regulation of speech because of disagreement with the message it
conveys.” Ward, 491 U.S. at 791 (emphasis added). Since the park’s dedication in
1994, the Village has banned all commercial activity in the park. The Village updated
its ordinance in 2015 to allow permitting for commercial activity. In large measure,
the Board enacted the permit process not to further restrict speech but to allow a
lawful avenue for expression. The Board members testified of “enjoying” the
photographers and wanting to give them “the benefit” of park resources. The evidence
shows that the regulatory intent was not to burden a message but to allocate resources
and address legitimate concerns for safety. See, e.g., United States v. Nenninger, 351
F.3d 340, 345–46 (8th Cir. 2003).
Havlak argues that because this ordinance burdens commercial photographers
and not non-commercial ones, the Village burdens her message of “family, peace,
tranquility and love.” There is no evidence that the Village shows antipathy for these
values, and the ordinance does not restrict either commercial or non-commercial
-12-
photographers from expressing these ideals. “A regulation that serves purposes
unrelated to the content of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others.” Ward, 491 U.S. at 791; cf.
Kaahumanu, 682 F.3d at 810–11 (denying an equal-protection claim against an
ordinance that burdened commercial weddings but not non-commercial ones).
“Characterizing a distinction as speaker based is only the beginning—not the end—of
the inquiry.” Reed, 135 S. Ct. at 2230–31. When a facially-neutral restriction is not
based on “disagreement with the message” and is “justified without reference to the
content of the regulated speech,” we will apply intermediate scrutiny. Cf. id. at 2227(internal quotation marks omitted) (quoting Ward, 491 U.S. at 791).
We find the Village ordinance content neutral because it does not facially
discriminate on the basis of content and the record does not indicate any
governmental purpose to burden any particular message. See Recycle for Change v.
City of Oakland, 856 F.3d 666, 674 (9th Cir. 2017) (“Because the Ordinance does
not, by its terms, discriminate on the basis of content, and there is no evidence that
Oakland enacted the Ordinance with an intent to burden RFC’s message of charitable
solicitation or out of any disagreement with that message, the Ordinance is content
neutral.”); Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303, 306 (7th Cir. 2017), cert.
denied sub nom. Patriotic Veterans, Inc. v. Hill, No. 16-1198, 2017 WL 2722437(U.S. June 26, 2017) (“Because Indiana does not discriminate by content—the statute
determines who may be called, not what message may be conveyed—these decisions
have not been called into question by Reed.”).
2. Narrow Tailoring
Havlak concedes that the ordinance was adopted to serve the significant
government interests of reducing congestion and maintaining park safety. Heffron v.
Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (“As a general
matter, it is clear that a State’s interest in protecting the ‘safety and convenience’ of
persons using a public forum is a valid governmental objective.”). Under the test for
-13-
time, place, and manner restrictions, the question remains whether the ordinance is
narrowly tailored to meet those interests. “[T]he requirement of narrow tailoring is
satisfied ‘so long as the . . . regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.’” Ward, 491 U.S. at 799(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). “[T]he government’s
choice among the means to accomplish its end is entitled to deference.” Ass’n of
Cmty. Orgs. for Reform Now v. St. Louis Cty., 930 F.2d 591, 595 (8th Cir. 1991).
Acceptable legislative purposes for permits include “to coordinate multiple uses of
limited space, to assure preservation of the park facilities, to prevent uses that are
dangerous, unlawful, or impermissible under the Park District’s rules, and to assure
financial accountability for damage caused by the event.” Thomas v. Chi. Park Dist.,
534 U.S. 316, 322 (2002).
First, Havlak contends that the ordinance’s application to groups of all sizes
renders it overly broad. Because groups smaller than ten do not pose the same hazards
to the use and safety of the park that larger groups would, she argues that requiring
a permit for these smaller groups shows a lack of narrow tailoring. She relies on
Douglas, 88 F.3d at 1524, in which we suggested that a permit requirement for
parades containing ten or fewer people might not be narrowly tailored. See also
Am.–Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th
Cir. 2005) (“The Ordinance is overly broad because under the Ordinance as written,
any procession of people with a common purpose or goal, whether it be a small group
of protestors or a group of senior citizens walking together to religious services, are
conceivably required to obtain a permit . . . .”). Unlike Douglas, in which the permit
process quelled potential spontaneous speech by an unlimited number of different
small groups, Ordinance § 202.020 applies specifically to commercial activity and is
distinguishable because it does not prevent small-scale expressive activity unrelated
to commercial enterprises. The Ninth Circuit rejected a similar argument in
Kaahumanu, in which plaintiffs argued that a permit requirement for commercial
weddings “as small as three individuals” on public beaches was not narrowly tailored.
-14-
682 F.3d at 804. Even though Hawaii contains more than 200 public beaches for this
activity, the court upheld the permit requirement because it was reasonably “designed
to minimize conflicting uses of limited beach area and to conserve the physical
resource of the beaches.” Id. at 803. The same reasoning applies here.
Havlak also points to Thomas, but she argues that the Supreme Court allowed
the permit requirement there because the pertinent regulation applied only to groups
of 50 or more. 534 U.S. at 322. In Thomas, however, the Court did not suggest that
requiring a permit for fewer than 50 people would be unconstitutional, but it rather
suggested that permit ordinances should be fashioned for the efficient use of park
resources. See id. (“[T]o allow unregulated access to all comers could easily reduce
rather than enlarge the park’s utility as a forum for speech.” (quoting Thomas v. Chi.
Park Dist., 227 F.3d 921, 924 (7th Cir. 2000))). Havlak ignores the problem of the
aggregation of small-group commercial activity within the Village park. The record
reveals an occasion when as many as eight small groups of commercial photographers
and their clients simultaneously attempted to use the park’s amenities. Havlak
testified that on both occasions in which she attempted to photograph subjects in the
park there were no less than three other groups shooting photography, too. Given the
high demand, the history of congestion, and the limited facilities of the park, the
ordinance’s lack of a permit exception for groups smaller than ten people does not
create a constitutional infirmity.
Second, Havlak argues that the ordinance is overly broad because the permit
is not restricted to certain congestion points known to attract commercial
photographers, but rather covers the entire 11-acre park. This argument ignores the
fact that the ordinance is designed to regulate all commercial activity—from
commercial yoga classes to basketball tournaments—not all of which would attempt
to use the same small areas preferred by commercial photographers. The permit
allows the Village to globally promote maximum use of park resources and protect
-15-
against damage to all park facilities, not just those most used by photographers. See
Kaahumanu, 682 F.3d at 803.
Third, Havlak argues that the two-day application period (for events of fewer
than ten people) and the 14-day period (for larger groups) are not narrowly tailored
because they serve to chill artistic expression. See, e.g., Church of the Am. Knights
of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682–83 (7th Cir. 2003) (rejecting
45-day advance permit notifications); Douglas, 88 F.3d at 1524 (“The five-day notice
requirement restricts a substantial amount of speech that does not interfere with the
city’s asserted goals of protecting pedestrian and vehicle traffic, and minimizing
inconvenience to the public.”). The cases presented by Havlak, however, deal
exclusively with ordinances that inhibit spontaneous speech. Much like weddings, see
Kaahumanu, 682 F.3d at 805, commercial photography shoots are rarely spontaneous.
Havlak testified that she discusses potential locations with clients before shooting.
For wedding photography, these discussions happen up to a year in advance. Havlak
contends that unpredictable light and weather conditions require spontaneity. Much
like commercial weddings, however, commercial photography only requires
spontaneity if unfavorable weather conditions arise. Planning for the event itself is
rarely spontaneous. As applied to her, these time periods sufficiently enable Havlak
to reasonably obtain permits for her commercial shoots.
Additionally, Board members testified that the two-day period was designed
to give their clerk (one of two full-time Village employees) the time required to
process permit applications. The 14-day period enables the Board itself to review
permits for larger commercial events, because the Board “meets the first and third
Wednesday[s] of each month.” These time periods fall squarely in line with the
processing times of similar constitutional permit ordinances. See, e.g., Santa Monica
Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1045 (9th Cir. 2006) (“The
two-day period . . . accords with Santa Monica’s significant governmental interests
by . . . providing a coordinated process for managing community events in heavily
-16-
burdened and limited public space . . . .”); Thomas, 534 U.S. at 324 (approving a
permit application process for large groups of 28 days). We conclude that the permit
processing times included in the ordinance are narrowly tailored to the significant
interests of the Village’s efficient administration of its governmental duties.
Fourth, Havlak contends that the ordinance is not narrowly tailored because the
administrative fee is too high. It is well established, however, that “fees that cover
only the administrative costs of the license are permissible.” Jacobsen v. Crivaro, 851
F.2d 1067, 1071 (8th Cir. 1988). Havlak argues that the $100 fee is excessive
considering the cost that the Village incurs to administer the permit process. Yet,
Board members testified that there was a “direct correlation” between the fee and the
cost that the Village incurs, and the record supports this assertion. Board members
testified that any commercial activity would require a police officer for at least two
hours. By contract, the Village is charged $38.70 per hour for officer patrols, and this
does not include the additional fees that the Village must pay for patrol-vehicle
maintenance and mileage. The record demonstrates an overall cost of employing an
officer for two hours amounts to more than $93. Moreover, this number does not
include the administrative costs for the Village clerk to handle the permit process. See
Kaahumanu, 682 F.3d at 794, 809 (approving a $20 application fee, plus a $0.10 fee
per square foot, and an insurance requirement of approximately $250 per year). We
hold that the fee amount is narrowly tailored to the actual costs that the Village
incurs.
The Village may not broadly prohibit free expression when satisfactory
alternatives exist. See Ass’n of Cmty. Orgs. for Reform Now v. City of Frontenac, 714
F.2d 813, 819 (8th Cir. 1983). But, the Village ordinance “need not be the least
restrictive or least intrusive means” of regulating public space. Ward, 491 U.S. at 798.
“So long as the means chosen are not substantially broader than necessary to achieve
the government’s interest . . . the regulation will not be invalid simply because a court
concludes that the government’s interest could be adequately served by some
-17-
less-speech-restrictive alternative.” Id. at 800. As applied to Havlak, we find the
ordinance meets the narrowly-tailored requirement.5
3. Ample Alternatives
Havlak also argues that the “unique” nature of the park makes it a one-of-a-
kind place, which no alternative could replace—and thus, the Village cannot
demonstrate that sufficient alternatives exist. Cf. Galvin v. Hay, 374 F.3d 739, 756
(9th Cir. 2004) (“[T]he question must be whether the regulation prevents the speakers
from expressing their views, where that expression depends in whole or part on the
chosen location.”). The record demonstrates, however, that the natural attributes of
the park exist in multiple locations across the Saint Louis area. In fact, although
Havlak does hundreds of photo shoots per year, she had not used the Village park
until learning about the ordinance; and since that time, she testified to using it only
twice. She frequently uses other city locations to voice the same messages she seeks
to express at the Village park. “[T]he First Amendment does not guarantee the right
to communicate one’s views at all times and places or in any manner that may be
desired.” Heffron, 452 U.S. at 647; see also Mastrovincenzo v. City of N.Y., 435 F.3d
78, 101 (2d Cir. 2006) (“The requirement that ‘ample alternative channels’ exist does
not imply that alternative channels must be perfect substitutes for those channels
denied to plaintiffs by the regulation at hand; indeed, were we to interpret the
requirement in this way, no alternative channels could ever be deemed ‘ample.’”).
The First Amendment does not require that artists get unrestricted access to “an ideal
venue,” but rather that “alternative avenues” of communicating their message are
5
Havlak also argues that the ordinance is overly broad because it targets only
commercial photographers instead of unpaid photographers, but this is simply a
reiteration of her claim that the ordinance is content based, and it fails for the same
reasons as her content-discrimination argument.
-18-
available. Mastrovincenzo, 435 F.3d at 102. The record demonstrates that Havlak has
ample alternative channels for communicating her message.6
4. Licensing Discretion
“[A] city may enact licensing procedures for conduct commonly associated
with expression, so long as the city ‘establish[es] neutral criteria to [e]nsure that the
licensing decision is not based on the content or viewpoint of the speech being
considered.’” Crivaro, 851 F.2d at 1070 (second alteration in original) (quoting City
of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 760 (1988)). “A government
regulation that allows arbitrary application is ‘inherently inconsistent with a valid
time, place, and manner regulation because such discretion has the potential for
becoming a means of suppressing a particular point of view.’” Forsyth Cty., 505 U.S.
at 130 (quoting Heffron, 452 U.S. at 649). “‘[A] law subjecting the exercise of First
Amendment freedoms to the prior restraint of a license’ must contain ‘narrow,
objective, and definite standards to guide the licensing authority.’” Id. at 131 (quoting
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969)).
Havlak argues that the ordinance is “impermissibly vague” and provides
unbridled discretion to the Village to approve or deny permits. The ordinance,
however, provides “articulated standards” and “objective factors” that the clerk and
the Board are to consider when granting permits. See id. at 133. The ordinance
requires the Village licensing officials to look at the nature of the activity, potential
conflicts with other scheduled events, the number of participants, and other factors
relevant to resource allocation. See Thomas, 534 U.S. at 323 (approving a “time,
6
At the heart of Havlak’s argument that alternative options do not exist is the
fear that this ordinance establishes incentives for “every small town to create identical
permit schemes.” We do not address this situation because it is not before us. Cf.
Thomas, 534 U.S. at 325 (“[T]his abuse must be dealt with if and when a pattern of
unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is
found in few legal arrangements.”).
-19-
place, and manner regulation contain[ing] adequate standards to guide the official’s
decision”). None of the factors listed in the ordinance deal with the content of speech,
and Board members testified that they have never denied a permit application.
The plain language of the ordinance guarantees permit approval for events
consisting of less than ten people, for less than an hour, and submitted 48 hours in
advance. For larger events, the Board may look only at legitimate factors relating to
park use and safety when analyzing a permit application. “While these standards are
undoubtedly flexible, and the officials implementing them will exercise considerable
discretion, perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity.” Ward, 491 U.S. at 794; see also Thomas,
534 U.S. at 324 (noting “the Park District may deny a permit only for one or more of
the reasons set forth in the ordinance”). Thus, we conclude the ordinance does not
grant unbridled discretion to the Village, and its licensing factors survive
constitutional scrutiny.
Because the Village ordinance is content neutral, has been narrowly tailored
to serve the Village’s significant governmental interests, leaves ample alternatives for
Havlak to communicate her message, and does not provide the Village with unbridled
discretion, we find the permit process survives Havlak’s challenge. See Forsyth Cty.,
505 U.S. at 130.
III. Conclusion
We conclude that the Village ordinance meets constitutional scrutiny as-
applied to Havlak. We, therefore, affirm the judgment of the district court.
______________________________
-20-